UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4060

TOMMY PABELLON,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

BOB HARRY FOWLER, a/k/a Richard

B. Fowler, a/k/a Slim Fowler, a/k/a

No. 98-4088

Richard Bob Fowler, a/k/a Bob

Harris Fowler, a/k/a Georgia Slim,

a/k/a Georgia Slim Fowler, a/k/a

Georgia Fowler,

Defendant-Appellant.

Appeals from the United States District Court

for the District of South Carolina, at Greenville.

Henry M. Herlong, Jr., District Judge.

(CR-97-487)

Argued: March 5, 1999

Decided: May 14, 1999

Before WILLIAMS and MICHAEL, Circuit Judges, and

MICHAEL, Senior United States District Judge for the

Western District of Virginia, sitting by designation.

_________________________________________________________________
Affirmed in part, reversed in part, and remanded by unpublished per

curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Randall Scott Hiller, RANDALL S. HILLER, P.A.,

Greenville, South Carolina, for Appellant Pabellon; Richard Walter

Vieth, Spartanburg, South Carolina, for Appellant Fowler. Harold

Watson Gowdy, III, Assistant United States Attorney, Greenville,

South Carolina, for Appellee. ON BRIEF: J. Rene Josey, United

States Attorney, Greenville, South Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

On July 22, 1997, Tommy Pabellon, Bob Harry Fowler, and Darrell Young (Defendants) were indicted by a federal grand jury for

their role in the shooting death of Ricky Samuel, 1 a Government

_________________________________________________________________

1 All three Defendants were named in a four-count indictment. Count

One charged Defendants with murdering Samuel to prevent his attendance and testimony at Pabellon's trial on federal drug charges in violation of 18 U.S.C.A. § 1512(a)(1)(A) (West Supp. 1999) and aiding and

abetting the same in violation of 18 U.S.C.A. § 2 (West 1969). Count

Two charged Defendants with murdering Samuel in retaliation for his

having provided the Government with information regarding Pabellon's

drug operations in violation of 18 U.S.C.A. § 1513(a)(1)(B) (West Supp.

1999) and aiding and abetting the same in violation of 18 U.S.C.A. § 2.

Count Three charged Defendants with murdering Samuel in retaliation

for his having testified before the federal grand jury that indicted Pabellon on federal drug charges in violation of 18 U.S.C.A. § 1513(a)(1)(A)

(West Supp. 1999) and aiding and abetting the same in violation of 18

U.S.C.A. § 2. Count Four charged Defendants with using or carrying a

firearm during and in relation to a drug trafficking crime in violation of

18 U.S.C.A. § 924(c) (West Supp. 1999).

 2
informant who, at time of his death, had provided the Government

with information regarding Pabellon's drug operations, had testified

before the federal grand jury that indicted Pabellon on federal drug

charges, and had been scheduled to be the key Government witness

at Pabellon's then-upcoming trial on federal drug charges. Young

pleaded guilty to one count of aiding and abetting the murder of Samuel and agreed to testify against Pabellon and Fowler. After a jury

trial, Pabellon and Fowler (Appellants) were found guilty on all

counts and sentenced to four life sentences, each to run concurrently.

On appeal, both Pabellon and Fowler contend that the district court

erred in denying their motion to sever the trial. In addition, Pabellon

contends that the district court erred in admitting into evidence the

redacted statement of a deceased unindicted co-conspirator and in

refusing to call as a court's witness an individual who had recanted

his earlier statement to the Government. Finally, Fowler contends that

the evidence was insufficient to support his convictions. With the

exception of two of Fowler's insufficiency of the evidence claims, we

find no reversible error. As for those two claims, we agree with Fowler that the Government failed to introduce any evidence that he murdered Samuel in retaliation for Samuel having provided the

Government with information regarding Pabellon's drug operations

(Count Two), or in retaliation for Samuel having testified before the

federal grand jury that indicted Pabellon on federal drug charges

(Count Three). Rather, the evidence established only that Fowler murdered Samuel to prevent Samuel's attendance and testimony at Pabellon's trial on federal drug charges (Count One). Accordingly, while

we affirm Pabellon's convictions in whole, we affirm Fowler's convictions in part and reverse in part.

I.

In 1995, Ricky Samuel was indicted by a federal grand jury for his

role in a large drug conspiracy in Spartanburg, South Carolina. In

exchange for his being allowed to plead guilty to simple possession

of cocaine, Samuel agreed to cooperate with local and federal law

enforcement agents in their continuing investigation into drug trafficking in the greater Spartanburg area.

In February 1996, Samuel purchased, pursuant to an undercover

police operation, crack cocaine from Pabellon. During the transaction,

 3
Pabellon's friend, Bryant Woodruff, remained in the car. The transaction was recorded and observed by local and federal law enforcement

agents. No arrests were made. On March 8, 1996, Samuel participated

in a second controlled buy. On this occasion, Samuel purchased crack

cocaine from Pabellon and Brian Freeman. Once again, the transaction was recorded and observed by local and federal law enforcement

agents. This time, however, Pabellon and Freeman were arrested

shortly after making the exchange.

Pabellon was subsequently indicted by a federal grand jury, before

which Samuel testified, for conspiracy to possess with intent to distribute crack cocaine and distribution of crack cocaine. Freeman was

charged with possession with intent to distribute crack cocaine.

Woodruff, however, was not charged with any violation stemming

from his participation in the February drug transaction. Pursuant to

the U.S. Attorney's Office's "open file" policy, Pabellon and Freeman

were informed that Samuel had been working as a Government informant.

On May 14, 1996, Samuel's body was found near a pond outside

Greenville, South Carolina. According to the autopsy report, Samuel

had been shot twice in the back of the head. Although the Government no longer had its key witness, the case against Pabellon went to

trial in July of 1996. After one day of trial, Pabellon pleaded guilty

to conspiracy. Freeman refused to plead guilty and was eventually

convicted of possession with intent to distribute crack cocaine.

Shortly after Freeman was convicted, he approached the Government with information about Samuel's murder.2 Based on the information provided by Freeman, the Government began investigating his

allegations that Pabellon had Samuel killed to prevent his attendance

at Pabellon's drug conspiracy trial. During the course of the Government's investigation, federal agents interviewed Woodruff, who was

awaiting trial on unrelated drug charges. During the interview, Woodruff provided oral and written statements to the Government concerning his involvement in the murder of Samuel. Woodruff stated that

_________________________________________________________________

2 Freeman also had information, which he shared with the Government,

concerning a threat against a federal prosecutor and a Spartanburg

County Sheriff's deputy.

 4
Pabellon enlisted his aid to find an individual to murder Samuel.

Woodruff asked his friend Darryl Young for help. Young in turn

located Bob Harry Fowler. According to Woodruff, Pabellon gave

him $15,000 to kill Samuel. Woodruff gave the $15,000 to Young.

Young kept $10,000 and paid Fowler $5,000. In April of 1997,

Woodruff hanged himself in federal prison.

On July 22, 1997, Fowler, Pabellon, and Young were named in a

four-count indictment. Count One charged Defendants with murdering Samuel to prevent his attendance as a witness in federal court in

violation of 18 U.S.C.A. § 1512(a)(1)(A) (West Supp. 1999) and aiding and abetting the same in violation of 18 U.S.C.A. § 2 (West

1969). Count Two charged Defendants with murdering Samuel in

retaliation for his providing to a law enforcement officer information

relating to the commission of a federal offense in violation of 18

U.S.C.A. § 1513(a)(1)(B) (West Supp. 1999) and aiding and abetting

the same in violation of 18 U.S.C.A. § 2. Count Three charged Defendants with murdering Samuel in retaliation for his giving information

in an official proceeding in violation of 18 U.S.C.A. § 1513(a)(1)(A)

(West Supp. 1999) and aiding and abetting the same in violation of

18 U.S.C.A. § 2. Count Four charged Defendants with using or carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C.A. § 924(c) (West Supp. 1999). Young pleaded

guilty to one count of aiding and abetting the murder of Samuel and

agreed to testify for the Government.

On September 30, 1997, the Government filed a motion in limine

seeking to admit into evidence a redacted portion of Woodruff's statement pursuant to Rule 804(b)(3) of the Federal Rules of Evidence

(statement against penal interest). The district court withheld its ruling

on the motion until Pabellon's and Fowler's trial, which began on

November 12, 1997. Ultimately, the district court, over objection,

allowed the Government to put into evidence the following redacted

portion of Woodruff's statement:

X came to me in March of 1996 and asked me if I knew

anyone that could have Samuel killed. I said no, but I could

see. I contacted Darrell Young and asked Young. Young got

back to me in a couple of months and said he had someone

 5
for the job. I went back to X, got the money, I gave the

money to Darrell Young.

(J.A. at 613-14.)

At trial, the Government called Freeman as a witness. Freeman testified that Pabellon said that he was going to "get" Samuel, because

he knew that Samuel had "set him up." (J.A. at 271.) According to

Freeman, Pabellon also asked his attorney, Al Taylor, what would

happen if Samuel did not show up for trial. In response, Taylor allegedly told Pabellon that the Government would no longer have a case

against him. In addition, Freeman testified that Pabellon suggested

that he (Freeman) kill Samuel so that the Government would not have

a case against him either. Freeman also testified that he overheard

Pabellon and Woodruff having a discussion on the night Pabellon

pleaded guilty. Freeman testified that he heard Pabellon say "Damn

man, we killed that damn boy for nothing. I went up there and pled

guilty to ten years today." (J.A. at 296.)

Pabellon's wife, Sonji, also testified for the Government. Sonji

stated that Pabellon and Woodruff sold drugs together and were close

friends. After Pabellon's arrest, Sonji testified that Pabellon knew that

Samuel had set him up, and that Pabellon showed Woodruff the evidence the Government had obtained against him, which included a

report detailing Samuel's role as an informant. Sonji also testified that

during one visit to Taylor's office, Pabellon and Taylor discussed

other cases where witnesses did not show up for court, including a

case where a witness was killed. In addition, Sonji testified that in late

April or early May of 1996, Pabellon removed $15,000 from their

safe. Finally, Sonji testified that after Samuel's body was found, she

heard Pabellon tell Woodruff, "Well, I paid . . . fifteen thousand dollars and you never did do nothing." (J.A. at 380.)

Xavier Barnette testified that Pabellon came to him in the spring

of 1996 and told him that Samuel was a "snitch," (J.A. at 242), and

asked him to "handle" the situation, (J.A. at 244). Barnette, who is

six-feet eight inches tall and had a reputation for roughing up people,

testified that the common meaning on the street for the term "handle"

was to "send a message," "break an arm," or "beat them up bad." (J.A.

at 244.) Barnette did nothing to Samuel and two weeks later Pabellon

 6
informed Barnette, "Man, I got to have something done about that

soon." (J.A. at 245.) Barnette also testified that Pabellon made a

motion with his hands -- that he (Barnette) interpreted to mean kill

Samuel -- and stated, "Man, somebody need to do that kid." (J.A. at

245.) Barnette informed Pabellon that he, Barnette, was not a killer.

Young, pursuant to his plea agreement, testified that he and Woodruff were best friends. Young testified that Woodruff came to him in

the spring of 1996 and asked if Young could have Samuel killed.

After several more requests, Young agreed to help find someone to

kill Samuel. Young located Fowler at a men's clothing store in Greenville where Fowler was working. Young told Fowler that he had a

friend in trouble with the law and that somebody (Samuel) was going

to "finger" the friend on a drug conspiracy. Young informed Fowler

that he needed this person taken care of. After Young promised to

provide Fowler with transportation, Fowler agreed to kill Samuel for

$5,000.

Young testified that he introduced Fowler to Lillie Young (Lillie),

who agreed to lend Fowler her turquoise-colored Mazda MX-6. Now

that he had transportation, Fowler told Young that he would drive to

Samuel's home, where he would introduce himself to Samuel as the

Reverend James. Fowler believed that he could get close to Samuel

posing as a reverend because most people trust religious people.

Young also testified that Fowler always carried a blue saddlebag that

contained a Bible and a gun. Fowler later reported to Young that

Samuel believed that he was a minister and that he (Fowler) had a

chance to kill Samuel at his home in Spartanburg while they were

praying, but that someone walked in on them.

On May 14, 1996, Fowler paged Young -- Fowler's code for pagers was "666" -- from a car wash to tell Young that he had killed

Samuel. Young and Fowler met later that day at a nightclub, at which

time Young paid Fowler $5,000. At that meeting, Fowler told Young

that he had picked Samuel up at the Probation Office in Spartanburg.

After driving Samuel to a rural area, he placed a gun to Samuel's head

and walked him down to a lake. Fowler told Samuel that he was a

professional hit man from Alabama. When Samuel pleaded for his

life, Fowler told him to "quit begging," (J.A. at 91), and to keep moving so that he could "get it over with," (J.A. at 448). Fowler told

 7
Young that he shot Samuel twice in the back of the head. After discussing the details of the murder, Fowler and Young returned the

Mazda MX-6 to Lillie.

Lillie testified that Young and Fowler borrowed her turquoisecolored Mazda MX-6 several weeks prior to May 14, 1996. She also

testified that when Young and Fowler returned her car on May 14,

1996, it was unusually clean. After Young left, Lillie and Fowler went

on a shopping spree. While shopping, Fowler, although unemployed

at the time, spent nearly $1,000 in cash.3 Among other things, Fowler

spent $500 on a rental car.4

Tameka Shell testified that she was Samuel's girlfriend at the time

of his murder. Shell testified that 2-3 weeks before Samuel was killed,

a man calling himself Reverend James came to Samuel's house.

Among other things, the Reverend James gave Samuel a Bible. She

identified Fowler as the person posing as the Reverend James.5 Shell

also testified that on the morning of May 14th, Fowler, posing as the

Reverend James, drove Samuel to the Probation Office in a turquoisecolored Mazda MX-6.

Detective Larry Bellew testified that during the search of Samuel's

home, he found a Bible. Fingerprints lifted from that Bible were compared to a known sample of Fowler's fingerprints. The fingerprints

from the Bible matched Fowler's. Detective Eugene Donohue testified that a subsequent search of Fowler's home produced a blue saddlebag and a scrapbook with Young's phone number. Detective

Donohue also testified that Fowler's residence was near the pond

where Samuel's body was found.

At trial, the defense argued, among other things, that Woodruff had

Samuel killed and that Young was the triggerman. On November 18,

_________________________________________________________________

3 Fowler quit his job selling men's clothing, where he had earned only

$5 an hour, shortly after agreeing to kill Samuel. Fowler did not start

working again until January of 1997.

4 The Government introduced a receipt from the car rental office where

Lillie Young took Fowler to rent the car.

5 Samuel's brother, Jerome, also identified Fowler as the individual

who had come to their home purporting to be the Reverend James.

 8
1997, the jury rejected the defense's theory of the case and returned

a guilty verdict against both Fowler and Pabellon on all four counts

of the indictment. On January 21, 1998, Fowler and Pabellon were

sentenced to four life sentences, each to run concurrently. This appeal

followed.

On appeal, Appellants raise several challenges to their convictions.6

Both contend that the district court erred in denying their motion to

sever the trial. In addition, Pabellon contends that the district court

erred in admitting into evidence the redacted statement of Woodruff

and in refusing to call as a court's witness an individual who had

recanted his earlier statement to the Government. Finally, Fowler contends that the evidence was insufficient to support his convictions.

We address these arguments in turn.

II.

On appeal, Appellants first argue that the district court erred in

denying their motion to sever the trial. In particular, they contend that

there was no basis for a joint trial under Rule 8 of the Federal Rules

of Criminal Procedure. In the alternative, Pabellon argues that the

joint trial was unduly prejudicial and, therefore, should have been

severed pursuant to Rule 14 of the Federal Rules of Criminal Procedure. Severance is a matter "committed to the sound discretion of the

district court." United States v. Tedder, 801 F.2d 1437, 1450 (4th Cir.

1986). Thus, the denial of a motion to sever should not "be disturbed

unless the denial of a severance deprives the defendants of a fair trial

and results in a miscarriage of justice." United States v. Becker, 585

F.2d 703, 706 (4th Cir. 1978).

Despite Appellants' contentions to the contrary, Rule 8(b) of the

Federal Rules of Criminal Procedure provided a basis for the joint

trial in this case. The test for joinder under Rule 8(b) is simply

whether defendants "are alleged to have participated in the same act

or transaction or in the same series of acts or transactions." Fed. R.

Crim. P. 8(b). Here, both Pabellon and Fowler are alleged to have participated in the murder of Samuel to prevent his testimony at Pabel-

_________________________________________________________________

6 Appellants do not challenge their sentences on appeal.

 9
lon's trial. Pabellon initiated the murder for hire scheme and Fowler

carried out the scheme. As a result, the requirements of Rule 8 were

satisfied in this case.

Moreover, it is worth noting that Pabellon and Fowler were

indicted together. In light of Rule 8, "[t]here is a preference in the

Federal System for joint trials of defendants who are indicted

together." Zafiro v. United States, 506 U.S. 534, 537 (1993). Thus,

"[b]arring special circumstances, individuals indicted together should

be tried together." United States v. Brugman , 655 F.2d 540, 542 (4th

Cir. 1981); see also United States v. Shuford , 454 F.2d 772, 775 (4th

Cir. 1971) (same).

One such special circumstance is contained in Rule 14 of the Federal Rules of Criminal Procedure. Rule 14 provides that a district

court may grant a severance of defendants "[i]f it appears that a

defendant or the government is prejudiced by a joinder of . . . defendants in an indictment." Fed. R. Crim. P. 14. The mere showing of

some prejudice, however, is not enough to establish a special circumstance. See Zafiro, 506 U.S. at 538-40. Rather, a miscarriage of justice must occur to require a severance. See Richardson v. Marsh, 481

U.S. 200, 206-11 (1987).

Here, Pabellon argues that he was prejudiced by the joint trial and,

therefore, that the district court should have severed the trial pursuant

to Rule 14. Specifically, Pabellon contends that there was more evidence, including physical evidence, against Fowler than there was

against him and that he would have had a better chance of acquittal

if tried separately. As this Court noted in United States v. Riley, 991

F.2d 120 (4th Cir. 1993), however, there is no right to severance

merely because the evidence against one defendant is stronger or

weaker than the evidence against another defendant. See id. at 125.

Moreover, a miscarriage of justice does not occur simply because a

separate trial would offer a defendant a better chance of acquittal. See

United States v. Spitler, 800 F.2d 1267, 1271-72 (4th Cir. 1986). In

sum, there is no evidence that "a joint trial would [have] compromise[d] a specific trial right of one of the defendants, or prevent[ed]

the jury from making a reliable judgment about guilt or innocence."

Zafiro, 506 U.S. at 539. As a result, the requirements of Rule 14 were

not satisfied in this case.

 10
III.

Next, Pabellon contends that the district court erred in admitting

into evidence the redacted statement of a deceased unindicted coconspirator.7 Specifically, Pabellon argues that the statement, made by

Bryant Woodruff, was not admissible pursuant to Rule 804(b)(3) of

the Federal Rules of Evidence as a statement against penal interest

because the statement was clearly exculpatory.8 A district court's evi-

_________________________________________________________________

7 The statement was redacted pursuant to Bruton v. United States, 391

U.S. 123 (1968) (holding that the admission of an accomplice's statements against interest that also incriminated the defendant violated the

defendant's Confrontation Clause rights where the declarant was unavailable for cross examination).

8 Pabellon does not argue that the admission of the redacted statement

violated the Confrontation Clause. In Ohio v. Roberts, 448 U.S. 56

(1980), the Supreme Court noted that a statement is admissible and does

not violate the Confrontation Clause where there is a necessity (i.e., the

witness is unavailable) and the statement bears sufficient "indicia of reliability" in that it falls within a "firmly rooted hearsay exception," or has

"particularized guarantees of trustworthiness" such that "there is no

material departure from the reason of the general rule." Id. at 65-66. In

Lee v. Illinois, 476 U.S. 530 (1986), the Supreme Court noted that confessions have a rebuttable "presumption of unreliability" and do not fall

within a "firmly rooted" hearsay exception. Id. at 543. In footnote 5, the

Court also seemed to reject a broad application of the statement against

penal interest exception to allow the admissibility of confessions, observing that the "concept defines too large a class for meaningful Confrontation Clause analysis." Id. at 544 n.5. After Lee, the question remains

whether statements against penal interest can qualify as a firmly rooted

hearsay exception as a class or whether each statement must qualify

through its particularized guarantee of trustworthiness. Cf. United States

v. Moses, 148 F.3d 277, 281 (3d Cir. 1998) (declining to decide if firmly

rooted), cert. denied, 119 S. Ct. 1047 (1999); United States v. Keltner,

147 F.3d 662, 671 (8th Cir.) (firmly rooted), cert. denied, 119 S. Ct. 574

(1998); LaGrand v. Stewart, 133 F.3d 1253, 1268-69 (9th Cir.) (suggesting firmly rooted in dicta), cert. denied, 119 S. Ct. 422 (1998); Neuman

v. Rivers, 125 F.3d 315, 319 (6th Cir.) (firmly rooted), cert. denied, 118

S. Ct. 631 (1997); Earnest v. Dorsey, 87 F.3d 1123, 1131 (10th Cir.

1996) (not firmly rooted); United States v. Trenkler, 61 F.3d 45, 62 (1st

Cir. 1995) (assuming firmly rooted); United States v. Matthews, 20 F.3d

538, 544-46 (2d Cir. 1994) (declining to decide if firmly rooted); United

States v. Flores, 985 F.2d 770, 775-76 (5th Cir. 1993) (not firmly

rooted); United States v. York, 933 F.2d 1343, 1363 (7th Cir. 1991)

(firmly rooted). That issue is not before us today.

 11
dentiary rulings are reviewed under the narrow abuse of discretion

standard. See United States v. Sanchez, 118 F.3d 192, 195 (4th Cir.

1997).

A statement is against interest if, "at the time of its making[, it] . . .

so far tended to subject the declarant to civil or criminal liability . . .

that a reasonable person in the declarant's position would not have

made the statement unless believing it to be true." Fed. R. Evid.

804(b)(3). Moreover, as the Supreme Court made clear in Williamson

v. United States, 512 U.S. 594, 603 (1994),"[e]ven statements that are

on their face neutral may actually be against the declarant's interest."

The district court allowed the Government to admit into evidence

the following statement:

X came to me in March of 1996 and asked me if I knew

anyone that could have Samuel killed. I said no, but I could

see. I contacted Darrell Young and asked Young. Young got

back to me in a couple of months and said he had someone

for the job. I went back to X, got the money, I gave the

money to Darrell Young.

(J.A. at 613-14.) Despite Pabellon's contentions to the contrary, the

admitted statement was clearly inculpatory. In the statement, Woodruff admitted that he aided and abetted the murder of Samuel. Indeed,

he admits that he actually helped find the hit man who killed Samuel.

As a result, the statement actually subjected Woodruff to criminal liability.

Moreover, in December of 1996, when Woodruff made his statement, he had not been arrested or indicted for the murder of Samuel.

In fact, no witness had yet come forward implicating Woodruff in the

murder. Rather, Woodruff came to the authorities on his own initiative. In addition, the Government made no offer of leniency or immunity to Woodruff in exchange for his statement. As such, unlike a

defendant who is caught red-handed and then begins to cooperate in

order to get a deal, Woodruff had no reason to lie. Thus, at the time

the statement was made, "a reasonable person in the declarant's position would not have made the statement unless believing it to be true."

 12
Fed. R. Evid. 804(b)(3). Accordingly, the district court did not abuse

its discretion in admitting the statement into evidence.9

IV.

Pabellon also contends that the district court erred in refusing to

call as a court's witness a Government witness who had recanted his

earlier statement. "[T]he utilization of court witnesses is a matter

within the discretion of the trial judge." United States v. Karnes, 531

F.2d 214, 216 (4th Cir. 1976). For the reasons that follow, we conclude that Pabellon's argument is without merit.

During its case in chief, the Government called Scott Miller as a

witness. Miller had previously told the Government that Pabellon had

approached him about having Samuel killed. On the stand, however,

Miller denied making such a statement. The district court, out of the

presence of the jury, questioned Miller about his testimony. Miller

admitted that he had lied to the FBI about Pabellon approaching him

to have Samuel killed. The district court informed the Government

that it could not call Miller as a witness because he had recanted his

story and the Government would be calling Miller as a witness solely

to impeach him with a prior inconsistent statement.

Pabellon's counsel then asked the Court to call Miller as a court

witness. The district court refused on the ground that it did not believe

that Miller was credible. Nevertheless, the district court informed

Pabellon's counsel that Pabellon could call Miller as a witness during

his defense. Pabellon did call Miller as a witness.

_________________________________________________________________

9 We note that the defense only objected to certain portions of Woodruff's statement being put before the jury, i.e. , the first two sentences and

the first half of the fifth sentence. In fact, because the defense argued at

trial that Woodruff had Samuel killed, the defense actually wanted the

district court to admit that portion of Woodruff's statement wherein he

said: "I contacted Darrell Young and asked Young. Young got back to

me in a couple of months and said he had someone on the job. . . . I gave

the money to Darrell Young." (J.A. at 411.) The district court correctly

noted, however, that taking the statement out of context, like the defense

requested, "would [make it] sound like . . . Woodruff was admitting he

started this, when in essence his statement definitely implicates someone

else as [requesting the hit and] bringing him the money." (J.A. at 411.)

 13
Although Rule 614 of the Federal Rules of Evidence allows a district court to call witnesses at the suggestion of a party, the district

court need not call an admitted liar as a witness, especially when the

witness can be (and in this case was) called by the defense. Pabellon

cites no rule, and certainly none exists, that requires a district court

to call a witness that has recanted the statement he gave to the authorities.

V.

Finally, Fowler contends that the district court erred in denying his

motion for judgment of acquittal pursuant to Rule 29 of the Federal

Rules of Criminal Procedure on Counts I-IV because the evidence

was insufficient to support his convictions. When assessing the sufficiency of the evidence of a criminal conviction on direct review,

"[t]he verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support

it." See Glasser v. United States, 315 U.S. 60, 80 (1942).

As an initial matter, we note that the Government introduced overwhelming evidence that, for purposes of 18 U.S.C.A.§ 1111(a), Fowler killed Samuel. Fowler was not indicted for just first-degree

murder, however. Rather, the first three counts of the indictment

alleged that Fowler killed Samuel for the reasons stated in the charged

statutes. Count One, for example, charged Fowler with the murder of

Samuel to prevent his attendance as a witness in federal district court

in violation of 18 U.S.C.A. § 1512(a)(1)(A).

On appeal, Fowler argues that the Government failed to introduce

any evidence that he killed Samuel to prevent his attendance and testimony in federal district court as Count One alleged. On this point we

agree with the Government; there is no requirement under the statute

in question that the Government prove that Fowler knew the federal

nature of the proceeding in which Samuel was to participate. Indeed,

§ 1512 provides, in pertinent part, as follows:

(f) In a prosecution for an offense under this section, no

state of mind need be proved with respect to the circumstance --

 14
(1) that the official proceeding before a judge,

court, magistrate, grand jury, or government

agency is before a judge or court of the United

States, a United States magistrate, a bankruptcy

judge, a Federal grand jury, or a Federal Government agency; or

(2) that the judge is a judge of the United States or

that the law enforcement officer is an officer or

employee of the Federal Government or a person

authorized to act for or on behalf of the Federal

Government or serving the Federal Government as

an adviser or consultant.

18 U.S.C.A. § 1512(f); see also United States v. Bell, 113 F.3d 1345,

1349 (3d Cir.) (noting that the statute is clear that the Government

need not prove any "state of mind" on the part of the defendant with

respect to the federal character of the proceeding or officer), cert.

denied, 118 S. Ct. 447 (1997).

Thus, the Government had to prove (with respect to Count One)

that Fowler's motivation in killing Samuel was to prevent him from

testifying in a proceeding that was in fact federal in nature, not that

Fowler knew that it was federal in nature. Here, there was ample evidence that Samuel was participating in a federal proceeding. Samuel

was a documented federal informant at the time of his death; Samuel

was scheduled to testify against Pabellon in federal court; and the

local agents with whom Samuel worked were assigned to a U.S.

Attorney's Office Task Force. Moreover, the record is clear that Fowler knew that the reason Samuel "needed [to be] . . . taken care of"

was because he was going to finger one of Darrell Young's friends

in court. Because there is substantial evidence that the proceeding at

which Samuel was to testify was federal in nature, the verdict of the

jury as to Count One must be sustained.

Count Two charged Fowler with the murder of Samuel in retaliation for his having provided to a law enforcement officer information

relating to the commission of a federal offense in violation of 18

U.S.C.A. § 1513(a)(1)(B) or aiding and abetting the same in violation

of 18 U.S.C.A. § 2. We agree with Fowler that the Government estab-

 15
lished only that Fowler knew that Samuel was going to "finger" one

of Young's friends (Pabellon) in court. The Government failed to

introduce any evidence that Fowler knew that Samuel had already

provided law enforcement with information regarding Pabellon's drug

dealing. Consequently, there is insufficient evidence that Fowler

killed Samuel in retaliation for his having provided such information

in violation of § 1513(a)(1)(B).10 

Count Three charged Fowler with the murder of Samuel in retaliation for his having testified in a federal proceeding in violation of 18

U.S.C.A. § 1513(a)(1)(A) or aiding and abetting the same in violation

of 18 U.S.C.A. § 2. As we noted above, the Government established

only that Fowler knew that Samuel was going to "finger" one of

Young's friends (Pabellon) in court. The Government simply failed

to introduce any evidence that Fowler knew that Samuel had already

testified against Pabellon in a federal proceeding. Consequently, there

is also insufficient evidence that Fowler killed Samuel in retaliation

for his having provided such information in violation of

§ 1513(a)(1)(A).

Finally, Count Four charged Fowler with using or carrying a firearm during and in relation to a drug trafficking crime in violation of

_________________________________________________________________

10 When a case is submitted to a jury on two adequate legal theories and

the jury returns a general verdict of guilty, affirmance is appropriate so

long as the evidence is sufficient to support a conviction on either theory.

See Griffin v. United States, 502 U.S. 46, 56-60 (1991); cf. Yates v.

United States, 354 U.S. 298, 312 (1957) (explaining that when a jury has

been instructed on two legal theories, one of which is legally inadequate,

the conviction must be reversed if it is not possible to determine whether

the jury convicted on the legally adequate, or inadequate, theory). Here,

Fowler was also charged with aiding and abetting. To find Fowler guilty

as an aider and abetter to the crime charged in Count Two pursuant to

18 U.S.C.A. § 2(a) (West 1969), the Government had to prove beyond

a reasonable doubt that someone committed each of the essential elements of the offense charged in Count Two. It was the Government's

theory that Fowler, not Pabellon, was guilty of the substantive offense,

and that Pabellon was guilty of aiding and abetting. Without evidence

that someone besides Fowler committed each of the essential elements

of the offense charged in Count Two, there is insufficient evidence to

find Fowler guilty of aiding and abetting pursuant to § 2(a).

 16
18 U.S.C.A. § 924(c). At trial, the Government introduced evidence

that Pabellon, Woodruff, and Young continued to sell crack cocaine

after Pabellon's arrest in March 1996. Moreover, when Young

approached Fowler about killing Samuel, he specifically informed

Fowler that Samuel was going to "finger" one of his friends in the

drug conspiracy. By agreeing to kill Samuel, Fowler joined the drug

conspiracy. See United States v. Roberts, 881 F.2d 95, 101 (4th Cir.

1989) (noting that a defendant has joined a conspiracy if he understands "the unlawful nature thereof and willfully joins in the plan on

one occasion"). Indeed, a defendant may join a drug conspiracy without knowing "the particulars of the conspiracy or all of his coconspirators." United States v. Burgos, 94 F.3d 849, 858 (4th Cir. 1996)

(en banc). Because Samuel was killed by Fowler in furtherance of a

drug conspiracy, there was sufficient evidence to find Fowler guilty

on Count Four.

VI.

For the foregoing reasons, Pabellon's convictions are affirmed in

whole and Fowler's convictions are affirmed in part and reversed in

part.11 Although Fowler remains subject to two life sentences for his

_________________________________________________________________

11 Although we reverse Fowler's convictions on Counts Two and

Three, we need not sua sponte reverse Pabellon's convictions on those

same counts. The jury was correctly instructed that it could find Pabellon

guilty as a principal pursuant to 18 U.S.C.A. § 2(b) (West 1969), if he

willfully caused Fowler to perform an act that, if directly performed by

Pabellon, would be an offense against the United States. Here, the evidence was overwhelming that Pabellon caused Fowler to kill Samuel.

Had Pabellon directly killed Samuel, it would be an offense pursuant to

both 18 U.S.C.A. § 1513(a)(1)(A) (West Supp. 1999) and 18 U.S.C.A.

§ 1513(a)(1)(B) (West Supp. 1999). Without question, the Government

established that Pabellon knew that Samuel had provided law enforcement with information regarding his drug dealing and that Samuel had

testified against him in a federal proceeding. Consequently, had Pabellon

directly done what he caused Fowler to do, i.e. , kill Samuel, there was

sufficient evidence from which a jury could conclude that Pabellon violated § 1513(a)(1)(A) and § 1513(a)(1)(B). Thus, Pabellon could be convicted of Counts Two and Three under § 2 even if there was insufficient

evidence to convict Fowler of both counts under§ 1513(a)(1)(A) and

§ 1513(a)(1)(B).

 17
convictions on Counts One and Four, we remand for the district court

to vacate Fowler's convictions on Counts Two and Three.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED 

 18